Defining 'mother' could end legal battles

WEIGHING IN

Everyone knows what a mother is, don't they? A mother is a woman who has given birth to a child.

Unless the woman doesn't raise the child. In which case, the woman who raises the child is his mother. At least she's his "adoptive mother."

But the woman who gives birth is the child's "birth mother" -- after all, she gave the child half its genetic complement and gave birth to it.

Unless the woman who gave birth to the child was a surrogate mother, in which case she only rented space in her uterus for nine months.

And then the child's "real" mother is the woman whose fertilized egg was implanted in the uterus of the surrogate. Unless the egg was donated. . . .

Forget it.

The old definitions simply do not work any longer. Sadly, we have reached a point where we need to legally redefine the word any articulate 3-year-old is able to clearly define -- "mother."

The latest reminder of the inability of alleged adults to agree on the definition of these two most basic terms comes from a case wending its way across the nation's front pages and through the courts of California.

In this case we have two women each claiming to be the mother of an infant boy not yet a month old.

Anna Johnson physically gave birth to the baby she calls "Mathew." She contends that that act of giving birth makes her his mother.

Not so, says Cris Calvert, a 36-year-old registered nurse married to a 34-year-old insurance broker.

Cris and Mark Calvert agreed to pay Ms. Johnson $10,000 plus expenses to carry to term a baby who began his existence in a petri dish when one of Cris Calvert's ovum was fertilized by one of Mark Calvert's sperm.

In other words, whatever this child's name is, he is the genetic offspring of the Calverts.

Both parties agree that Ms. Johnson was hired as a surrogate for the Calverts, and was to deliver the baby to them when he was born.

But somewhere along the line Ms. Johnson said she was going to keep "her" baby.

It is time to legally define what we mean when we call someone a mother and why it is also time to outlaw commercial surrogate arrangements.

The easier of the two tasks is defining "mother." I'm not a lawyer, but consider the following:

The legal mother of a child is that person whose fertilized ova divided and became that child, unless she has freely donated that ova to another and has given up all legal rights to the child. If a woman voluntarily gives up all legal rights to her child and that child is legally adopted by another woman, the woman who adopts the child is then considered, for legal purposes, the child's mother.

The main point in such definitions is that they eliminate any and all claim that a surrogate may make to being the "mother" of a child she has carried to term for another couple.

Outlawing surrogates is a more complicated proposition. A first step, however, would be to pass state laws making it a crime to accept money in exchange for acting as a surrogate and requiring that any attorney who aids or abets a surrogate arrangement automatically and permanently be barred from the practice of law.

Such restrictions would eliminate the profit motive and eliminate the lawyers, but would still allow friends and relatives to voluntarily act as surrogates for their friends or relatives.

And legally stating that a child's mother -- prior to a legal adoption -- is the woman whose genes it carries ensures that any surrogate deals that are made cannot result in the kind of painful mess we are witnessing now in California.

* Mr. Colen is the senior correspondent for science and medicine at Newsday.